State v. Meyer

Decision Date20 March 1998
Docket NumberNo. 96-2243-CR,96-2243-CR
Citation216 Wis.2d 729,576 N.W.2d 260
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Tory M. MEYER, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner the cause was argued by Stephen W. Kleinmaier Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief by Richard B. Hahn and Holden & Hahn, S.C., Sheboygan and oral argument by Richard B. Hahn.

Amicus curiae was filed by Nicholas L. Chiarkas, State Public Defender, Madison and William J. Tyroler, First Assistant State Public Defender, Milwaukee for State Public Defender.

Amicus curiae was filed by David R. Karpe, Madison for Wisconsin Association of Criminal Defense Lawyers.

¶1 N. PATRICK CROOKS, Justice

The State of Wisconsin (State) seeks review of an unpublished decision of the court of appeals 1 reversing the conviction of Tory M. Meyer (Meyer) for possession of tetrahydrocannabinols (THC) with the intent to deliver, as a party to a crime, contrary to Wis. Stat. §§ 939.05 and 161.41(1m)(h)2. 2 The Sheboygan County Circuit Court, Honorable Gary Langhoff presiding, denied Meyer's motion to suppress evidence seized during the execution of an anticipatory search warrant. 3 The circuit court also determined that the officers' act of dispensing with the rule of announcement in executing the warrant was reasonable. Meyer was convicted of possession of THC with the intent to deliver, as a party to a crime. On appeal the court of appeals reversed the circuit court's judgment and remanded the case, concluding the no-knock entry during the execution of the search warrant was in violation of Meyer's rights under the Fourth Amendment to the United States Constitution.

¶2 We conclude that the anticipatory search warrant is constitutional because it is supported by probable cause. We further conclude that the warrant is not unconstitutional merely because it lacks explicit conditional language stating that the warrant may not be executed until delivery of the contraband is made to the premises to be searched. Finally, we conclude that under Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), an officer may dispense with the rule of announcement 4 when executing a search warrant if the officer has a reasonable suspicion, based upon the particular facts of a given case and the reasonable inferences drawn therefrom, that knocking and announcing the officer's presence would be dangerous or futile or inhibit the effective investigation of the crime. Furthermore, in determining whether reasonable suspicion exists, an officer's training and prior experience in similar situations may be considered in combination with the particular facts. Accordingly, we remand the case to the circuit court for a determination whether, in consideration of the particular facts presented in this case, the officers had a reasonable suspicion that exigent circumstances existed to justify their no-knock entry.

I.

¶3 The facts are undisputed for purposes of our review. On November 17, 1995, Sheboygan County Sheriff's Detective Alonna Koenig (Koenig) applied for a warrant to search the premises located at 1033 St. Clair Avenue in the city of Sheboygan. In the affidavit supporting the warrant, Koenig stated the following:

¶4 Koenig had received information from United States Postal Inspector Dan Kakonis (Kakonis) regarding a package Kakonis had intercepted which he believed to contain controlled substances. Kakonis, who had eight years of experience working as a postal inspector, had worked with Koenig on prior occasions and provided her information which subsequently led to the interception of packages containing controlled substances and related paraphernalia. Pursuant to his training and personal experience, Kakonis had informed Koenig that packages containing controlled substances often contain handwritten labels, incorrect or fictitious names or addresses, a perfumed odor to disguise any pungent odor from the controlled substance, that such packages are often sent via Express Mail, and that the source of the packages is often a state from which controlled substances are generally shipped, such as California.

¶5 Koenig further stated that on November 16, 1995, at the Post Office in Milwaukee, Wisconsin, Kakonis profiled a package being sent Express Mail to a Tory "Mayor" at 1033 St. Clair Avenue, Sheboygan, Wisconsin. A mail carrier for that route informed Kakonis that there was an individual by the name of Tory Meyer residing at 1033 St. Clair Avenue. The return address indicated the package was en route from California. Kakonis intercepted the package and brought it to the Sheboygan County Sheriff's Department. On November 17, 1995, a K-9 Unit (i.e., canine) from the Sheboygan County Sheriff's drug unit located the package from among other similar shaped and sized packages by scratching and biting at the package, indicating that the trained dog detected controlled substances in the package. Based upon this information, Koenig stated she believed that there would be "illegal controlled substances" located at 1033 St. Clair Avenue in Sheboygan, including cocaine and/or marijuana, and possibly related drug paraphernalia, including identifiers, drug ledgers, packaging materials, scales, and items used to ingest drugs.

¶6 Sheboygan County Circuit Court Commissioner Terence T. Bourke issued a search warrant at 1:30 p.m. on November 17, 1995, finding probable cause to believe that there were controlled substances "now located and concealed in and upon" the premises occupied by Tory Meyer at 1033 St. Clair Avenue, Sheboygan. The warrant authorized a search for controlled substances, drug ledgers or records, packaging materials, identifiers, scales, and items used for the consumption of illegal drugs.

¶7 Koenig delivered the intercepted package to an individual identifying himself as Tory Meyer at 1033 St. Clair Avenue on November 17, 1995, at approximately 2:20 p.m. Ten minutes later the drug enforcement unit executed the search warrant. The police knocked on the door and then broke the door in with a battering ram. The officers announced their presence while crossing the threshold of the premises. The officers searched the premises and found marijuana and other drug-related paraphernalia. As a result of the evidence seized, the State charged Meyer with possession of THC with the intent to deliver, as a party to a crime, contrary to Wis. Stat. §§ 939.05 and 161.41(1m)(h)2, and possession of a Schedule I 5 controlled substance without a tax stamp, as a party to a crime, contrary toWis. Stat. §§ 939.05 and 139.95(1) and (2).

¶8 Meyer brought a motion to suppress the evidence seized during the execution of the warrant, asserting violations of his rights as guaranteed under the Fourth Amendment to the United States Constitution 6 and Article I, § 11 of the Wisconsin Constitution. 7 First, Meyer argued that the warrant was an unconstitutional anticipatory or conditional warrant as it was not supported by probable cause. Second, Meyer argued that the police entry was unconstitutional because the police did not knock and announce their presence, and that there was no probable cause for the police to dispense with the knock and announce requirement. Third, Meyer argued that the detention of his mail was illegal and, therefore, the search warrant based upon that detention was illegal. 8

¶9 The circuit court denied Meyer's motion to suppress. The circuit court found that the postal inspector had a reasonable suspicion to detain the package and that the length of detention under the circumstances was reasonable. The court also found that there was a substantial basis for determining that probable cause existed to issue the search warrant. The circuit court determined that the warrant was not "technically an anticipatory search warrant," and did not specifically address Meyer's assertion that the warrant lacked the requisite conditional language. However, without correction from the court, defense counsel clarified his understanding that the circuit court was denying Meyer's argument that the lack of conditional language rendered the warrant unconstitutional. The circuit court further determined that the police were justified in making the no-knock entry.

¶10 Pursuant to a negotiated plea agreement Meyer agreed to plead no contest to the charge of possession of THC with intent to deliver, as a party to a crime, and the State agreed to move to dismiss the charge of possessing controlled substances without a tax stamp, as a party to a crime. Based on this plea, the circuit court found Meyer guilty of possession of THC with the intent to deliver, as a party to a crime, contrary to Wis. Stat. §§ 939.05 and 161.41(1m)(h)2. Meyer appealed.

¶11 The court of appeals reversed the judgment of the circuit court and remanded the case. The court of appeals recognized that the "blanket rule," allowing officers to dispense with the rule of announcement in cases involving felony drug investigations, set forth by this court in State v. Stevens 9 and reaffirmed in State v. Richards (Richards I ) 10 had been rejected by the United States Supreme Court in Richards v. Wisconsin (Richards II ). 11 The court of appeals concluded that the execution of the search warrant was in violation of Meyer's rights under the Fourth Amendment to the United States Constitution pursuant to Richards II. The court of appeals rejected the State's reliance on Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) to support its argument that regardless of the constitutionality of the entry, the evidence need not be suppressed because it was obtained in accordance with a valid search warrant issued by a neutral and detached commissioner. The court distinguished Segura, noting that the...

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